of the Santisima Trinidad, 7 Wheat. 306, and United States v. Palmer, 3 W. 635, confirm this doctrine. By the terms of the constitution defining treason, a traitor must be a subject and a belligerent, and none but a belligerent subject can be a traitor.

The government have in fact treated the insurgents as belligerents on several occasions, without recognizing them in express terms as such. They have received the capitulation of rebels at Hatteras, as prisoners of war, in express terms, and have exchanged prisoners of war as such, and have blockaded the coast by military authority, and have officially informed other nations of such blockade, and of their intention to make it effective, under the present law of nations. They have not exercised their undoubted right to repeal the laws making either of the blockaded harbors ports of entry. They have relied solely on their belligerent rights, under the law of nations.**

Having thus the full powers and right of making and carrying on war against rebels, both as subjects and as belligerents, this right frees the President and Congress from the difficulties which might arise if rebels could be treated only as SUBJECTS, and if war could not be waged upon them. If conceding to rebels the privileges of belligerents should relieve them from some of the harsher penalties of treason, it will subject them to the liabilities of the belligerent character. The privileges and the disadvantages are correlative. But it is by no means conceded that the government may not exercise the right of treating the same rebels both as subjects and as belligerents. The constitution

*Note to the Forty-third Edition. See cases decided in the Supreme Court, printed in the Appendix. See Note A, p. 215. Also, The Revere, 24 Law Rep. 276; Amy Warwick, Ib. 335-394; The Brilliant, 11 Am. Law Rep. 334; S. C. 2 Black, 635; Cole v. Mer. Mut. Ins. Co. 13 Am. Law Reg. 27; Hiawatha, 18 Leg. Int. 232; The F. W. Johnson, Ib. 334; also, Note on the "Right of Capture," p. 451.

defines a rebel who commits treason as one who "levies war" on the United States; and the laws punish this highest of crimes with death, thus expressly treating the same person as subject and as belligerent. Those who save their necks from the halter by claiming to be treated as prisoners of war, and so protect themselves under the shield of belligerent rights, must bear the weight of that shield, and submit to the legal consequences of the character they claim. They cannot sail under two flags at the same time. But a rebel does not cease to be a subject because he has turned traitor. The constitution expressly authorizes Congress to pass laws to punish traitor-that is, belligerentsubjects; and suppressing rebellion by armed force is making war. Therefore the war powers of government give full belligerent rights against rebels in arms.

THE LAW OF NATIONS IS ABOVE THE CONSTITUTION.*

Having shown that the United States being actually engaged in civil war, in other words, having become a belligerent power, without formal declaration of war, — it is important to ascertain what some of the rights of belligerents are, according to the law of nations. It will be observed that the law of nations is above the constitution of any government; and no people would be justified by its peculiar constitution in violating the rights of other nations. Thus, if it had been provided in the Articles of Confederation, or in the present constitution, that all citizens should have the inalienable right to practise the profession of piracy upon the ships and property of foreign nations, or that they should be lawfully empowered to make incursions into England, France, or other countries, and seize by force and bring

*Note to Forty-third Edition. See U. S. v. Moreno, 1 Wallace, 400. Appendix, p. 531

home such men and women as they should select, and, if these privileges should be put in practice, England and France would be justified in treating us as a nest of pirates, or a band of marauders and outlaws. The whole civilized world would turn against us, and we should justly be exterminated. An association or

agreement on our part to violate the rights of others, by whatever name it may be designated, whether it be called a constitution, or league, or conspiracy, or a domestic institution, is no justification, under the law of nations, for illegal or immoral acts.

INTERNATIONAL BELLIGERENT RIGHTS ARE DETERMINED BY THE

LAW OF NATIONS.

To determine what are the rights of different nations when making war upon each other, we look only to the law of nations. The peculiar forms or rights of the subjects of one of these war-making parties under their own government give them no rights over their enemy other than those which are sanctioned by international law. In the great tribunal of nations, there is a "higher law" than that which has been framed by either one of them, however sacred to each its own peculiar laws and constitution of government may be.

But while this supreme law is in full force, and is binding on all countries, softening the asperities of war, and guarding the rights of neutrals, it is not conceded that the government of the United States, in a civil war for the suppression of rebellion among its own cit izens, is subject to the same limitations as though the rebels were a foreign nation, owing no allegiance to the country.

With this caveat, it will be desirable to state some of the rights of belligerents.

BELLIGERENT RIGHTS OF THE GOVERNMENT.

*

Congress has power to make laws authorizing the capture of the property of public enemies on land and water; the confiscation of their real and personal estate; and the military government of the inhabitants of conquered territory. As the property of all nations has an equal right upon the high seas (the highway of nations), in order to protect the commerce of neutrals from unlawful interference, it is necessary that ships and cargoes seized on the ocean should be brought before some prize court, that it may be judicially determined whether the captured vessel and cargo were, in whole or in part, enemy's property or contraband of war. The decision of any prize court, according to the law of nations, is conclusive against all the world. Where personal property of the enemy is captured from the enemy, on land, in the enemy's country, no decision of any court is necessary to give a title thereto.† Capture passes the title. This is familiar law as administered in the courts of Europe and America. ‡

BELLIGERENT RIGHTS CONFIRMED BY THE CONSTITUTION.

Some persons have questioned whether title passes in this country by capture or confiscation, by reason of some of the limiting clauses of the constitution; and others have gone so far as to assert that all the proceedings under martial law, such as capturing enemy's property, imprisonment of spies and traitors, and seizures of articles contraband of war, and suspending the habeas corpus, are

* See Stat. 1861, chap. 60. Also the case of Armstrong's Foundry, 6 Wallace, 769; United States v. Republican Banner Office, 11 Pitts, Leg. Jour. 153.

† See Note to Forty-third Edition, p. 459. — This distinction between prize and capture has been recognized (1865) by the Supreme Court. See The Peterhoff, p. 582. In The Battle 6 Wallace, 498, the court say (1867), "Capture as prize of war jure belli overrides all previous liens." See also Coolidge v. Guthrie, p. 591.

‡ Alexander v. Duke of Wellington, 2 Russ. & Mylne, 35. Lord Brougham said that military prize rests upon the same principles of law as prize at sea, though in general no statute passes with respect to it. See 1 Kent's Comm. 357.

in violation of the constitution, which declares that no man shall be deprived of life, liberty, or property without due process of law;* that private property shall not be taken for public use without just compensation; † that unreasonable searches and seizures shall not be made; that freedom of speech and of the press shall not be abridged ;§ and that the right of the people to keep and bear arms shall not be infringed. ||

THESE PROVISIONS NOT APPLICABLE TO A STATE OF WAR.

If these rules are applicable to a state of war, then capture of property is illegal, and does not pass a title; no defensive war can be carried on; no rebellion can be suppressed; no invasion can be repelled; the army of the United States, when called into the field, can do no act of hostility. Not a gun can be fired constitutionally, because it might deprive a rebel foe of his life without due process of law firing guns not being deemed "due process of law."

Sect. 4 of Art. IV. says, that "the United States shall guarantee to every State in this Union a republican form of government, and shall protect each of them against invasion, and on application of the legislature, or of the Executive (when the legislature cannot be convened) against domestic violence."

Art. I. Sect. 8, gives Congress power to declare war, raise and support armies, provide and maintain a navy; to provide for calling forth the militia to execute the laws of the Union, suppress insurrection and repel invasion; to provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be in the service of the United States.

* Constitutional Amendments, Art. V. ↑ Ibid. Art. IV.

§ Ibid. Art. I.

† Ibid. Art. V.

|| Ibid. Art. II.